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2001 DIGILAW 697 (KER)

Daniel v. State of Kerala

2001-11-28

M.R.HARIHARAN NAIR

body2001
Judgment :- M.R. Hariharan Nair, J. The challenge in this jail appeal is with regard to the conviction entered against the accused for the offence under S.20(b)(i) of the N.D.P.S. Act and the sentence. of R.I. for three years and fine of Rs. 30,000/-(in default R.I. for one year) imposed therefore. 2. The prosecution case that at about 5.50 RM. on 10.8.1997 the accused was seen in possession of 200 grams of ganja made into 84 small packets and concealed in a black bag kept in the arm pit of the accused besides another 425 grams in a plastic cover held in his hand while standing on the eastern side of tarred road leading to Charuvelli at Ponthenpuzha East junction in Manimala Village found acceptance based on the evidence of PWs.1 to 5 and Exts. P1 to P9 and Dl to D3. The conviction and sentence followed. 3. Smt. T.K. Sreekala, who appeared for the appellant on crown defence, submitted that the conviction is unsustainable for violation of Ss.42 and 50 of the N.D.P.S. Act. She also relied on case law in support of her contentions. 4. On the arguments advanced in the case the points that arise for decision are: 1) Whether the accused is entitled to get an acquittal for violation of S.42(2) of the N.D.P.S. Act? 2) Whether the accused is entitled to get an acquittal for violation of S.50 of the N.D.P.S. Act? 3) Reliefs. 5. Point No. 1: The evidence of PW.4 is to the effect that while proceeding on patrol duty along with other policemen, PW.4, who was the Sub Inspector of Manimala Police Station, found the accused standing at the eastern side of the road near Ponthenpuzha east junction holding a bag in his hand and another bag at the portion near his armpit. The finding of the accused as above was casual and not based on any prior information. That apart, the accused was not found in a building, conveyance or enclosed place. On the other hand, it was in a public place. That S.42(1) does not apply with regard to information relating to availability of contraband in an open place is covered by the decision in Abdul Azeez v. State of Kerala (2001 (1) KLT 805), which has been confirmed in appeal by the Apex Court vide order in S.L.P. (Crl.) 3120 of 2001. That S.42(1) does not apply with regard to information relating to availability of contraband in an open place is covered by the decision in Abdul Azeez v. State of Kerala (2001 (1) KLT 805), which has been confirmed in appeal by the Apex Court vide order in S.L.P. (Crl.) 3120 of 2001. The contention that there was violation of S.42(1) of N.D.P.S. Act has therefore to fail. 6. Point No. 2:- The evidence of PW. 4 is to the effect that after the accused was apprehended he was told that his body was proposed to be searched and that he had the right to have the search in the presence of a Gazetted Officer. The accused was asked about his option therefore and the accused then stated that there was no need for the presence of a Gazetted Officer and that PW.4 himself could search. It is argued that there is nothing in writing to show that the accused had opted against the need for search before a Gazetted Officer. That there is no need to get the option in writing is covered by the decision in Sajan Abraham v. State of Kerala 2001(3) KLT 146 = (2001) 6 SCC 692. Exts. P4 FIR and PI seizure mahazar have both reached the learned Special Judge of trial of N.D.P.S. cases on the very next day after the occurrence. The fact that the accused was informed of his right as above and asked about the option and that he opted against the search in the presence of a Gazetted Officer is mentioned in both these contemporaneous documents. It is therefore idle to contend that the version of PW4 is actually an afterthought and that his evidence that the accused had in fact opted against such search in the presence of Gazetted Officer is inadmissible. The oral version is corroborated by the contents of the F.I.R. and the seizure mahazar as above and in the circumstances there is sufficient evidence to conclude that the accused was asked about his option after informing him of his right. 7. Yet another contention of the learned counsel for the appellant is that there was failure to inform the accused about his right to be searched in the presence of a Magistrate and that the option given here was only for search in the presence of a Gazetted Officer. 7. Yet another contention of the learned counsel for the appellant is that there was failure to inform the accused about his right to be searched in the presence of a Magistrate and that the option given here was only for search in the presence of a Gazetted Officer. That this is not significant unless prejudice is established and that the mention of any one option will be substantial compliance with the requirement of law is clear from the decisions in Abdul Azeez's case (supra') as also the Bench decision in Marakkar v. State of Kerala (2001(3) KLT 539 = 2001 (2) KLJ 662). 8. The version of PW4 regarding search and seizure is corroborated by PW2, who was the Assistant Sub Inspector in the partrol party led by PW4. In the circumstances there is sufficient evidence to conclude that there was in fact seizure of 625 grams of ganja from the possession of the accused which was held by him in two different bags. The samples prepared out of the said stock, when subjected to chemical analysis in the Analyst's Laboratory, revealed that the substance seized was genuine ganja as certified in Ext. P9. In the circumstances there is no merit in any of the defence contentions and there is reliable and acceptable evidence to show that there was actual seizure of 625 grams of ganja from the possession of the accused. The conviction entered against the appellant is therefore well justified and there is no reason to set aside the conviction.. As far as the sentence is concerned, it is seen that the maximum prescribed under S.20(b)(i) is R.I. for a term which may extend to 5 years and a fine which may extend to Rs. 50,000/- In the instant case, besides the contraband in question, there was seizure of a sum of Rs. 11,800/- from the possession of the accused and that indicates that it was the sale proceeds of the contraband sold earlier. Further, the quantum seized is not a small quantity. In the circumstances I am of the view that the sentence imposed viz. R.I. for 3 years and fine of Rs. 30,000/- is not at all excessive. In the circumstances, the appeal is found to be without merit and it is accordingly dismissed.